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dead, there could not be any cxpress proof, since, at the execution of wills, oftentimes none are present but the devisor and .witnesses. The proof must, therefore, as in other cases, be circumstantial ; and there were sufficient circumstances in the case, 1st. Three witnesses had set their names, and it must be intended they did it regularly; 2d. One witness was an attorney of good character, and may be presumed to understand what ought to be done, rather than the contrary. And the question being a matter of fact, it ought to be left to the jury, as was the question whether livery was given in a feoffment, where no livery was indorsed ; and whether a deed was executed, where the counterpart only was produced.

To the same effect was the case of Croft v. Paulet,(r) where the words of the attestation were "signed, sealed, published, and declared, as and for his last will, in the presence of us, A, B, and C." And it being objected, that the hands of the witnesses could only stand as to the facts they had subscribed to, and signing in the presence of the testator was not one ; the court, on the authority of the case of tiands v. James, above cited", said it was evidence to be left to a jury, with all the ch> cumstances; and a verdict was given for the will.

The same point was decided in the same way a few years before, by Lord Chief Justice Willes, and the rest of the Court of Common Pleas, in the case of Brice v. Smithy 147) where also the witnesses were all dead.

(a) 2 Strange, 1109.

(147) Willes' Rep. 1. Com. Rep. 539, S. C. But the report in Comyns seems to be a little inaccurate, in saying, that nothing but the names of the witnesses were subscribed ;the attestation being expressed in the same words as in the above-mentioned case of Croftc Paulet, "signed, scaled, published and declared, by the said testator, to be his last will and testament, in the presence of us," &c. See the note Af the editor, Willes, 4. (A)

T y

•PART IV.

Of thoquali- IT seems now time to speak of the quality and capacity of

fication of tne witnesses, who, by their attestation, are necessarv to give tne witness*

N. effect to a will of real estate, under this statute. In Hudson's

case, reported in Skinner,(a) it was proved that the witnesses had been dealt with; upon which it was urged by the counsel, that if the witnesses were not to be believed, then there would not be three witnesses to the will, and so no will within the statute; to which Chief Justice Pemberton answered, that if there were three witnesses to a will, whereof one was a thief, or person not credible, yet the words of the statute being satisfied, and he having collateral proof to fortify the will, he would direct a jury to find it a good will. By which it should seem, we ought to understand his Lordship to mean, that if there was nothing at the time of the attestation to impeach the competency of the witnesses, they must be regarded as credible witnesses at that time, within the proper interpretation pf the word credible, as used by the statute. But if a witness be convicted of felony, and so rendered infamous, at the time of his subscribing the will, it seems not to have been doubted, but that the will was invalid, for defect of a sufficient attestation.

What offen- Crimes which stigmatize a man with infamy, when convicted

ees dUquali- thereof, such as treason, felony, conspiracy at the suit of the crown, perjury, forgery, barratry, attaint of false verdict, and disqualify him for giving evidence upon a trial in a court of justice, repel him also from becoming a subscribing witness * [ 416 ] to a will> to tne effect of satisfying the statute *by his attesta

Thatitisthe lion.(A) It seems, indeed, to have been formerly a notion, that

infamyof the _ every offence for which a man had been caused, or even sen. offence, and'

not of the tenced to be set in the pillory, on account of the infamy of the wWchdls Punishment, rendered him incapable of giving testimony ;(r) qualifies. but more modern cases have established the law in this particular on a more sensible foundation, by making the infamy of the crime only, and not the infamy of the punishment, the ground of the disqualification; and according to the present doctrine, persons who have suffered an infamous punishment, unless the

(a) 79. (A) Com. Dig. tit. Temoigne, fi. 2. (c) Co. Litt. 6. b.

offence for which it was inflicted on them, was of the species of crimen falsi, or other crime of an infamous nature, are not disabled from giving their testimony in a court of justice, however much their credit with the jury may be affected by such a fact. Before the statute of the thirty-first of this King,(cQ persons convicted of petit larceny, were judged not to be credible witnesses to attest a will under the statute of frauds. And in the case wherein this was held, the rule was also laid down in strong and clear terms, that it is the crime and not the punishment which makes a man infamous, and vitiates his testimony.(f)

If a man be sentenced to the pillory for a treasonable libel, or slanderous words on government, he is not disqualified for becoming a witness in court, and is therefore a credible witness to a will; but if he be convicted of barratry,, which is an infamous offence, though he be sentenced only to be .fined, he is rendered incompetent as a witness in court, and unqualified, it is conceived, as a credible witness, to attest under the statute.^/") Idiots and madmen, and children under *the age of common * [ 417 ] knowledge, who are incapable of discerning or estimating truth, are clearly in a state of legal incompetency to prove a fact, and therefore, can never be regarded as capable of attesting a will, so as to answer what the statute intends by such attestation. And generally, I apprehend, it may safely be concluded, that whatever incapacitates a man as a witness at common law, is an objection to the sufficiency of his attestation as a credible witness, •within the meaning of the statute; for ' credible' in the place Tne

in which it stands in this statute, cannot well be received in 'credible,' as • > . i • • i 'l's used by

any other sense than ' competent; the word in its popular sense tlIe statute,

being incapable of any constant test or standard, according to must be unwhich a testator could make his choice of witnesses with any the sense of confidence in the validity of their attestation. Upon the same competent, principle, if the competency, having been lost, has been restored before the attestation, the credit required by the statute has also been re-established, and the attestation will be good. Thus the King's pardon, after a conviction of perjury, or other

(o) By stat. 31 Geo. 3, c. 35, it is enacted, that no person shall be an incompetent witness, by reason of a conviction of petit larceny, (c) Pendock v. Mackinder, Willes, 665. 2 Wils. 182. And see Rex „. Ford, 2 Salk. 690. 5 Mod. 15. (/) Chater tr. Hawkins, 3 Lev. 426. Rex v. Ford, 2 Salk. 690.

offence at common law, qualifies the party to attest a will, though, as it should seem, it would be otherwise in the case of a conviction of perjury, on the statute of 5 El. c. 9.(148) And such restoration to competency would come loo late, as I humbly apprehend, between the time of attestation and examination in court.(149)

(148) If a man be convicted of perjury upon the statute, he cannot be restored to credit by the King's pardon; for by the statute it is part of the judgment, that the convict be infamous, and lose the credit of his testimony; nothing, therefore, but a reversal of the judgment, or a statute pardon will, in that case, suffice to restore the competency. Rex v. Crosby, 2 Salk. 689, and Rex v. Ford, ibid, 690. 3 Salk. 155.

Of the qua- (149) By the laws of the empire, those persons only were capable lification of of attesting a will, who were themselves legally capable of making a witnelses"in testament. No person under puberty, or insane, or mute, or deaf, or the civil law. prodigal interdicted the use of his own property, or such as the law had judged reprobate or infamous, or had rendered intestable, could be admitted as witnesses to a will. I. 2. 10. 6. D. 28. 1. 20. Neither could women be witnesses to regular or perfect wills: the law admitting them in all matters, whether civil or criminal, when the nature of the case was such, that other evidence could not be attained, but not when there was a choice of testimony, as in making wills, and solemnising other public acts: their testimony was admitted in proof of a fact, but not to give validity to a solemn instrument. See this particularity of the civil law explained, and the whole of this title of the Institutes 'qui testes esse possum,' well commented upon by Vinnius, edit. Hein. 297.

The witnesses by the civil law must be credible, and idoneouS, at the time of the will's being made, and according to the humanity of that system, as well as of our own, every one was presumed to be fit as a witness, unless the contrary was made to appear. D. 22. 5. 2. It is to be observed too, that all the witnesses ought to be fit, or' idoneous, for the whole will was rendered null and void by the insufficiency of any one of the witnesses. C. 6. 23. 12. unless a codicillary clause were added, that if it were not valid as a will, it should be valid as a codicil. If a madman attested in a lucid interval, hjs attestation was gond, and so was that of a prodigal, if, before attesting, he had returned ad bonos mores. The integrity and freedom of the witnesses was a great point in the imperial law; insomuch, that no person could be a witness to a testament, who was under the power of the testator; and though any number of persons might be admitted witnesses out of the same family, to a will in which the family was

•By the Jaw of Rome, no hxrea scri/itus, or appointed heir, could be admitted a witness to the testament by which he lwas so t [ 419 ] appointed ; neither could the testimony of any one who was in subjection to such heir, nor of his father, to whom he himself was in subjection, nor of his brothers, if they were under the power of the same father, be admitted ; but the testimony of legataries, and of those who were allied to them, or in subjection to them, was admissible,^) which was a doctrine, not perfectly agreeable to the general rule of the civil law, that no one should be permitted to give testimony in his own cause ;(A) nor is the consistency of that rule saved by the reason given for the admission of such testimony, viz. that legataries were particular and not universal successors, and that a testament might be valid without them ; whereas, the appointment of an heir, was of the essence and constitution of a perfect testament,(150) and formed the principal feature of distinction between that and a codicil,( 151) or a donatio causa mortis.

(g) I. 2.10. 10. 11. (A) Cod. 4. 20. 10.

not interested, yet, if a son of a family gave away his military estate, or peculium, after leaving the army, neither the father, nor any one under the power of the father, could be a witness to the testament. In apology for which rules of exclusion, the extent of the paternal authority among the Romans should be remembered; and, indeed, so adjusted to one another do the several parts of the system of the Roman jurisprudence appear to be, that, it seems, the student will have considered them with little advantage in a view to the illustration of such of our own laws as have been copied therefrom, or are in affinity therewith, unless he have found time and possess curiosity to make . that great work of human policy an entire and consecutive branch of his studies.

(150) The exactest definition of a Roman testament has been thought to be this—the appointment of an executor or testamentary heir, made according to the formalities prescribed by lan. Domat. lib. 1, t. 1, sect. 1; and vide D. 28, 5, 1.

(151) There is no difference in our law, at to publication, between codicils and wills : but codicils are said by Justinian, nullamsolemnitatrm ordinationis detiderare: which Vinnius comments upon with disapprobation, as not being consonant to the Theodosian code ; and complains of the jejuna quorundam distinctio inter tolemnitatem ordinationis et probationis. Heineccius, however, maintains the distinction thus: In testamentis condendis testibus opus erat talibus quibuscum olim fuerat testa.

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